The Official Code of Georgia Annotated (OCGA) contains every current Georgia statute (i.e., all of Georgia’s laws), along with non-binding annotations explaining each statute (e.g., summaries of judicial opinions applying the statutes or references to relevant secondary sources). The OCGA is created by Georgia’s Code Revision Commission, which is a part of the state’s legislative branch. By virtue of the Commission’s work, the state of Georgia claimed a copyright in the annotations within the OCGA—i.e., the parts of the OCGA other than the statutes themselves. Thus, when Public.Resource.Org (PRO) posted the OCGA online and distributed copies to others, Georgia sued PRO for copyright infringement.

The trouble with Georgia’s copyright claim, according to the Supreme Court, was that “no one can own the law.” Georgia, No. 18-1150, slip op. at 7. Under the government edicts doctrine, lawmakers cannot be considered “authors” for copyright purposes of any works they create in their capacity as lawmakers. Id. at 7–8. Thus, the Court explained, “copyright does not vest in works that are (1) created by judges and legislators (2) in the course of their judicial and legislative duties.” Id. at 9.

Applying the government edicts doctrine here, the Court noted first that the OCGA was created by legislators, as the Code Revision Commission is a state entity within the legislative branch comprising mostly legislators. Second, the Court reasoned that “the Commission creates the annotations in the ‘discharge’ of its legislative ‘duties.’” Id. at 10 (citing Banks, 128 U.S. at 253). Accordingly, the Supreme Court held that “the annotations in Georgia’s Official Code fall within the government edicts doctrine and are not copyrightable.” Georgia, No. 18-1150, slip op. at 11.

In so holding, the Court also addressed several of Georgia’s arguments, one being that the Copyright Act lists annotations as an example of a work eligible for copyright protection. The Court pointed out, however, that even annotations must still be a work of authorship to be protectable, and the government edicts doctrine precluded considering the Commission as an author. Id. at 11–12. Georgia also argued that the government edicts doctrine should not apply in this case because the annotations do not carry the force of law. But the Court explained that the rule focuses on the identity of the author, not the legal effect of the works that are created. Id. at 15–18. Accordingly, the Court affirmed the Eleventh Circuit’s ruling that the OCGA is not copyrightable. Id. at 18.

Interestingly, the two dissents revolved around the same general notion that the government edicts doctrine, while good law, should not apply to the annotations. Specifically, the thrust of Justice Thomas’s dissent was that under the doctrine, “statutes and regulations cannot be copyrighted, but accompanying notes lacking legal force can be.” Georgia, No. 18-1150 (Thomas, J., dissenting), at 4. And Justice Ginsburg argued that the OCGA annotations fall outside the purview of the doctrine because annotations written after a law is passed “do not rank as part of the Georgia Legislature’s lawmaking process.” Id. (Ginsburg, J., dissenting) at 2. Perhaps the most interesting concern moving forward, raised by Justice Thomas, is whether “States will stop producing annotated codes altogether.” Id. (Thomas, J., dissenting) at 17.

Regardless, the majority’s formalist construction of the term “author” in the Copyright Act is clear: a state cannot own a copyright in official code annotations if they were drafted by a legislative entity of that state. Of course, as the majority pointed out and even Justice Thomas agreed, “critics of [the Court’s] ruling can take their objections across the street, [where] Congress can correct any mistake it sees.” Georgia, No. 18-1150, slip op. at 13 (citation omitted); see alsoid. (Thomas, J., dissenting) at 17. Whether congressional action is likely, however, is probably dependent on whether such a need manifests in the coming years.

]]>https://www.closeupsblog.com/2020/05/scotus-says-states-cannot-copyright-annotated-codes/feed/0California Court Affirms Self-published Defamation Judgmenthttps://www.closeupsblog.com/2020/05/california-court-affirms-self-published-defamation-judgment/
https://www.closeupsblog.com/2020/05/california-court-affirms-self-published-defamation-judgment/#respondWed, 20 May 2020 21:00:47 +0000https://www.closeupsblog.com/?p=2808Continue Reading]]>California employers beware. In Tilkey v. Allstate Insurance Co., No. D074459 (Cal. Ct. App. Apr. 21, 2020) (Order), California’s Fourth District Court of Appeal recently affirmed a judgment on a theory of self-published defamation. In doing so, it held that the plaintiff, a former life insurance salesman for Allstate, was justly awarded damages based on his compulsion to recite the allegedly false allegations Allstate made for terminating his employment to prospective employers.

As set forth in the Order, having worked for Allstate Insurance for thirty years, Tilkey was fired after disclosing that he had been charged but not convicted for domestic violence against his then-girlfriend, Jacqueline Mann. Ultimately, the charges were dropped. However, prior to dismissal of all charges, Allstate terminated Tilkey’s employment, citing to violations of company policy in the form of “[t]hreats or acts of physical harm or violence to the property or assets of the Company, or to any person, regardless of whether he/she is employed by Allstate.” Order at 6 (internal quotation marks omitted). Allstate reported the reason for Tilkey’s termination on a Form U5, which was obtainable by any company that could hire for the type of role Tilkey had at Allstate. Tilkey sued Allstate for wrongful termination and compelled self-published defamation to prospective employers. The jury, following trial, returned a verdict in favor of Tilkey.

Judge Huffman of the Court of Appeal referred to the general rule that a valid defamation claim requires the publication be done by the defendant. In characterizing the exception to this rule, he defined the idea of compelled self-published defamation. As laid out in Live Oak Publishing Co. v. Cohagan (1991), 234 Cal. App. 3d 1277, 1284, compelled self-published defamation can be found “when it [is] foreseeable that the defendant’s act would result in [a plaintiff’s] publication to a third person” (internal quotation marks omitted). Order at 21. “For the exception to apply, the defamed party must operate under a strong compulsion to republish the defamatory statement, and the circumstances creating the compulsion must be known to the originator of the statement at the time he or she makes it to the defamed individual.” Id. at 22 (citing Beroiz v. Wahl (2000), 84 Cal. App. 4th, 485, 497); Davis v. Consolidated Freightways (1994), 29 Cal. App. 4th, 354, 373 (Davis); Live Oak Publishing, at p. 1285; McKinney v. County of Santa Clara (1980), 110 Cal. App. 3d, 787, 796).

Analyzing the theory of “compelled self-published defamation per se,” the Court of Appeal rejected Allstate’s claim that the doctrines of defamation per se and self-defamation were incompatible. Allstate also attempted to argue that the judgment should be reversed on the basis that there had been only one published case (McKinney, 110 Cal. App. 3d, 787), in which a compelled self-publication claim had survived summary judgment. Furthermore, Allstate argued, the case relied on out-of-state cases and possessed a unique set of facts. The California Court of Appeal, however, was not persuaded and found similarity between the set of facts in McKinney and those in the case at hand. Additionally, Judge Huffman rejected Allstate’s claims that the statements were privileged.

The Court assessed the specific facts of the case in explaining why substantial evidence supported the jury findings that Tilkey was compelled to self-publish statements that were not substantially true. The Court agreed that Tilkey would necessarily have to explain the circumstances behind his termination at Allstate, as job applications ask for such information. The Court further affirmed the defamatory nature of the statements by finding it highly unlikely that an employer in the industry would hire anyone whose U5 forms listed termination for cause.

Last, the Court turned to Allstate’s claim that its statements regarding Allstate’s basis for Tilkey’s termination were substantially true, a claim that, if upheld, would be a complete defense against civil liability, as is the case with traditional defamation. The Court disagreed, however, finding that the conduct at issue was disruptive behavior and that the “facts [did] not include evidence that Mann was ever directly threatened; nor [did they] indicate that Tilkey was threatening to physically harm Mann…” Id. at 32. Judge Huffman ultimately affirmed the finding that Allstate was liable for defamation and punitive damages but remanded for reassessment of the “proper amount of punitive damages against Allstate based on the defamation cause of action.” Id. at 49.

Despite the Court’s ruling, Allstate’s argument that there is a lack of extensive case law affirming self-published defamation is appreciable. While Courts have acknowledged self-published defamation as an exception to the traditional defamation requirements since 1890, states have been hesitant to apply the theory in the context of an employee reproducing the defamatory statements of a former employer to a third party. See Allen v. Wortham, 89 Ky. 485, 13 S.W. 73, 73 (1890) (where plaintiff’s illiteracy compelled him to have allegedly defamatory statements read by a third party). Courts, such as the Massachusetts Supreme Judicial Court in White v. Blue Cross and Blue Shield of Massachusetts Inc., 442 Mass. 64 (2004), have declined to recognize the theory of compelled self-published defamation out of fear of the unpredictable impact such an affirmation could have on at-will employment, among other policy concerns. It is for these reasons that the ruling at hand is all the more significant. Employers would be wise to take note of this decision in establishing protocol with respect to employee terminations.

In the underlying litigation, Marathon had sued Fresh Cuts Lawncare, Inc. and its owners (collectively “Fresh Cuts”) regarding, among other things, statements made by Fresh Cuts in news reports and via a Facebook page that Marathon had engaged in unfair business practices and failed to pay invoices. Marathon claimed that the purported defamatory statements were harming its business and subpoenaed journalist Kerri O’Brien, of the Richmond affiliate of ABC News, who had obtained statements from Fresh Cuts and others in the course of her investigative report about Marathon’s business practices. Marathon’s subpoena specifically sought to obtain a voicemail recording from O’Brien, which Marathon claimed would substantiate the publication element of its defamation claim against Fresh Cuts. See Order at 2.

O’Brien moved to quash Marathon’s subpoena on grounds of the qualified reporter’s privilege. See id. at 1. As a preliminary matter, the court concluded that O’Brien possessed standing to assert the qualified reporter’s privilege under the First Amendment because, although not an absolute privilege, “in civil proceedings, the First Amendment affords journalist[s] a qualified privilege.” See Gilbertson v. Jones, 2016 WL 6518659, *3 (E.D. Va. 2016). The court then evaluated O’Brien’s assertion of the qualified reporter’s privilege under a three-prong analysis focusing on: “(1) whether the information sought is relevant, (2) whether the information can be obtained by alternative means, and (3) whether there is compelling interest in the information.” See LaRouche v. Nat ‘l Broadcasting Co., 780 F.2d 1134, 1139 (4th Cir. 1986).

The court ultimately quashed the subpoena, finding that, even if the voicemail sought by Marathon was relevant to the underlying litigation, Marathon woefully failed to demonstrate either that the information could not be obtained by alternative means – such as through deposing or cross-examining Fresh Cuts regarding its communications with O’Brien – or that Marathon had a compelling interest in the information sought. The court found that there was no compelling interest in the voicemail because it was not clear that the voicemail “could play an important role in the outcome” of the proceedings, especially because the information sought was alternatively obtainable through Fresh Cuts’ testimony. See Order at 2 (quoting Gilbertston, 2016 WL 6518659, at *5).

The Court’s Order thus provides an important signal that the qualified reporter’s privilege may be especially potent where there is an alternative mechanism to obtain information sought from a journalist, even if that information is relevant to the underlying claims asserted. Parties should be wary of this consideration when choosing whether to incur the time and expense of subpoenaing journalists, particularly where the information could be more efficiently obtained by other means.

]]>https://www.closeupsblog.com/2020/05/court-quashes-subpoena-to-investigative-journalist/feed/0Counterclaims on the Cutting-Room Floor: How a Central District Court Cut Down the Writers Guild’s Countersuit Against Hollywood’s Talent Agencieshttps://www.closeupsblog.com/2020/04/counterclaims-on-the-cutting-room-floor-how-a-central-district-court-cut-down-the-writers-guilds-countersuit-against-hollywoods-talent-agencies/
https://www.closeupsblog.com/2020/04/counterclaims-on-the-cutting-room-floor-how-a-central-district-court-cut-down-the-writers-guilds-countersuit-against-hollywoods-talent-agencies/#respondThu, 30 Apr 2020 21:09:40 +0000https://www.closeupsblog.com/?p=2769Continue Reading]]>A California federal court recently dismissed the majority of the counterclaims asserted by the Writers Guild of America (the Guild) against William Morris Endeavor Entertainment, Creative Artists Agency, and United Talent Agency (the Agencies) in a highly publicized suit over the Agencies’ right to receive “packaging” fees.

The case arose from the Guild’s decision last year to prohibit talent agents from earning packaging fees on film and television projects. For decades, it was common practice for studios to pay talent agents “packaging” fees for acquiring and pooling talent (e.g., assembling writers, actors, and directors, as talent agencies have a substantial roster of such talent) for a given project. These fees frequently consist of a combination of license fees paid by studios for a project and a percentage of the project’s gross receipts. The Guild banned this practice last year, claiming that packaging fees create conflicts of interest between talent agents and the writers they represent. In the Guild’s view, enabling talent agents to participate in the profits of a film or television project through packaging (1) lowers production budgets (thereby reducing writer compensation) and (2) lowers the agents’ incentive to increase their writer-clients’ compensation. The Guild favors a commission-based system, where a talent agent takes a percentage of their clients’ earnings, which it believes better incentivizes talent agents to maximize their writer-clients’ compensation. Following the Guild’s ban, the Agencies filed suit, alleging the packaging prohibition amounts to an illegal group boycott in violation of the Sherman Act.

The Guild countersued, alleging that the practice of charging packaging fees violates state and federal antitrust laws (governing price-fixing and unlawful group boycotts) and amounts to racketeering activity in violation of RICO laws, a breach of fiduciary duties, constructive fraud, and unfair competition.

In an April 27, 2020 ruling, a Central District of California court dismissed a majority of the Guild’s counterclaims. The court dismissed three out of four of the Guild’s antitrust claims, its breach of fiduciary duty and constructive fraud claims, and all four of its RICO claims. The Guild’s claim for price-fixing under the Sherman Act and its RICO claims were dismissed without leave to amend. The Guild’s claims for price-fixing under California’s Cartwright Act and a corresponding declaratory relief claim that the Agencies violated the Cartwright Act survived dismissal.

In dismissing the price-fixing claim under the Sherman Act, the court zeroed in on the requirement that an injured party in a price-fixing lawsuit must be a participant “in the same market” as the alleged wrongdoer. SeeGlen Holly Entmt., Inc. v. Tektronix, Inc., 343 F.3d 1000, 1008 (9th Cir. 2003). The Court found that the studios – not the Guild or its members – participate in the market for packages. Order at 8. Any anti-competitive injuries suffered by the Guild or its members are, in the court’s view, “entirely derivative” of the injuries suffered by the studios. Id. In contrast, the court allowed the Guild’s state-law price fixing claim under Cartwright Act to stand, as it does not similarly require that the Guild participate in the “same market” for packages.

The Guild’s failure to allege a “horizontal agreement among direct competitors” led to the dismissal of its group boycott claims under the Sherman Act and California law. SeeSambreel Holdings LLC v. Facebook, Inc., 906 F. Supp. 2d 1070, 1076 (S.D. Cal. 2012). At most, the Agencies’ alleged conduct in disputing the Guild’s packaging fee ban amounted to disapproval of the Guild’s tactics and not a coordinated agreement among competitors to boycott the Guild. Order at 11-12.

In addition, the racketeering claims failed to survive the Agencies’ pleading challenge because the Guild failed to make the required showing that prohibiting studios from paying packaging fees to the agencies prevents corruption. Order at 13. As the Guild, not its writer-members, chooses which talent agencies may represent writers in their negotiations with the studio, the court found there is no potential for corruption or illegal kickbacks. Id.

The Guild’s inability to allege standing led to the dismissal of its breach of fiduciary duty, constructive fraud, and unfair competition claims. An organization has standing to bring suit on behalf of its members where the claim asserted does not require the participation of individual members in the lawsuit. See Hunt v. Wash. State Apply Advert. Comm’n, 432 U.S. 333, 343 (1977). The court determined that “a litany of individualized assessments” would be needed to determine whether the Agencies breached their fiduciary duties or committed fraud. Order at 15. Similarly, the Court found that only writer-members, and not the Guild itself, alleged personalized injuries to confer Article III standing to state a claim for unfair competition. Order at 18-19.

We will keep watching, and there is more to come.

]]>https://www.closeupsblog.com/2020/04/counterclaims-on-the-cutting-room-floor-how-a-central-district-court-cut-down-the-writers-guilds-countersuit-against-hollywoods-talent-agencies/feed/0Court Slaps Down Corporal Punishment Defamation Case Against Broadcasting Corporationhttps://www.closeupsblog.com/2020/04/court-slaps-down-corporal-punishment-defamation-case-against-broadcasting-corporation/
https://www.closeupsblog.com/2020/04/court-slaps-down-corporal-punishment-defamation-case-against-broadcasting-corporation/#respondWed, 22 Apr 2020 15:00:04 +0000https://www.closeupsblog.com/?p=2757Continue Reading]]>The Los Angeles County Superior Court recently granted an anti-SLAPP motion brought by the defendant, MBC Broadcasting, Inc. (MBC), in a defamation suit based on news broadcasts by MBC. MBC broadcast four news stories regarding allegations of improper corporal punishment and child abuse at Young Youth Core Academia (YYCA), an after-school academic program for children owned and operated by Helen Byon in the Koreatown area of Los Angeles. Following the broadcasts, Ms. Byon and her son (Plaintiffs) sued MBC for alleged defamatory statements. MBC subsequently filed a special motion to strike Plaintiffs’ claims pursuant to California Civil Procedure Code section 425.16, California’s anti-SLAPP statute.

Courts engage in a two-step process when considering an anti-SLAPP motion. On prong one, the defendant is required to make a “prima facie showing” that the plaintiff’s causes of action arise from a protected activity, which includes the defendant’s right of petition or free speech in connection with a public issue. Once the defendant makes a prima facie showing, the court proceeds to prong two. There, the burden shifts to the plaintiff to demonstrate a reasonable probability of prevailing on the merits of the complaint.

The Court first held that MBC satisfied prong one because “news reporting on the serious topic of child abuse is an exercise of speech concerning an issue of public interest.” Therefore, MBC’s broadcasts constituted protected activity under section 425.16.

Turning to prong two, the court analyzed whether Plaintiffs demonstrated a probability of prevailing on the merits of their defamation claims. To prevail on a defamation claim, Plaintiffs must establish “the intentional publication of a false statement of fact that has a natural tendency to injure [P]laintiff’s reputation or that causes special damage.” J-M Mfg. Co., Inc. v. Phillips & Cohen LLP, 247 Cal. App. 4th 87, 97 (2016). If Plaintiffs are public figures, Plaintiffs must also establish that MBC acted with actual malice.

The Court held that Plaintiffs failed to demonstrate a reasonable probability of prevailing on the merits of their defamation claims because: (1) Plaintiffs failed to demonstrate a reasonable probability that MBC’s broadcasts were false; (2) Plaintiffs failed to establish that MBC acted with actual malice; and (3) California Civil Code section 47(e)(2)’s fair and true reporting privilege barred Plaintiffs’ claims.

Falsity. Plaintiffs failed to demonstrate a reasonable probability that MBC’s broadcasts were false. The four broadcasts reported that there had been investigations into child abuse by Ms. Byon at the YYCA and contained numerous interviews with former YYCA students describing their abuse. MBC also reported that Ms. Byon completely denied the charges but more allegations had been revealed. The last broadcast covered Ms. Byon’s decision to run for Koreatown community representative despite the allegations.

In support of its anti-SLAPP motion, MBC provided numerous declarations regarding the alleged abuse, including declarations by four parents of YYCA students regarding reports by their children of abuse by Ms. Byon. Meanwhile, in support of their opposition to the anti-SLAPP motion, Plaintiffs largely relied on Ms. Byon’s declaration in which she denied the allegations. The Court held that “mere assertions that a statement is ‘false,’ even in sworn declarations, do not satisfy a plaintiff’s burden to demonstrate falsity.”

Malice. The Court stated that Plaintiff was required to establish that MBC acted with actual malice because Plaintiff was at least a limited purpose public figure in the Korean-American community. Specifically, the Court found that Plaintiff was a limited purpose public figure because the evidence “establishe[d] that Plaintiff was actively involved in the Korean-American community in Koreatown and purposefully interjected herself into issues that involved the Korean-American community and residents.”

The Court held that Plaintiff failed to establish that MBC acted with actual malice because Plaintiffs presented no evidence that MBC acted with knowledge or with reckless disregard as to whether the broadcasts were false. Instead, the evidence showed that MBC attempted to interview Ms. Byon as part of its investigation and conducted multiple interviews with parents and students.

Privilege. Finally, the Court held that California Civil Code section 47(e)(2)’s fair and true reporting privilege, which protects any publication or broadcast that is a “fair and true report” for “the public benefit,” barred Plaintiffs’ claims. The Court emphasized that California “has a strong public policy of protecting children from abuse.” Consequently, because MBC’s broadcasts reported on child abuse allegations at YYCA, the fair and true reporting privilege applied to the broadcasts and barred Plaintiffs’ claims.

The First Amendment provides important protections to the press so that it may inform and protect the public. The anti-SLAPP statute provides another layer of protection to ensure that the press may exercise its First Amendment rights.

]]>https://www.closeupsblog.com/2020/04/court-slaps-down-corporal-punishment-defamation-case-against-broadcasting-corporation/feed/0Court Dismisses Defamation Claim Against The Daily Beasthttps://www.closeupsblog.com/2020/04/court-dismisses-defamation-claim-against-the-daily-beast/
https://www.closeupsblog.com/2020/04/court-dismisses-defamation-claim-against-the-daily-beast/#respondMon, 13 Apr 2020 21:00:33 +0000https://www.closeupsblog.com/?p=2739Continue Reading]]>Eric Wedgewood (creator of a once-popular meme account on social media) sued The Daily Beast Company LLC (Daily Beast) for defamation, false light, and intentional infliction of emotional distress (IIED). On March 11, 2020, the U.S. District Court for the Northern District of Illinois granted the Daily Beast’s motion to dismiss the complaint. See Wedgewood v. The Daily Beast Company LLC, No. 19 C 3470 (N.D. Ill. Mar. 11, 2020).

According to the Daily Beast article (see infra), Wedgewood has used many pseudonyms over the years, including the pen name Heiko Julien. On April 14, 2018, an anonymous user (not Wedgewood, but using the handle @HeikoJulien) began posting screenshots of direct messages that Wedgewood had allegedly sent to underage girls through a social media account. After eight days, the anonymous account was shut down.

Two weeks later, on April 25, 2018, the Daily Beast published an article titled “‘He Started Messaging Me When I Was 16’: Female Memers Slam ‘Content Zone’s’ Creator,” referring to Wedgewood. The article quoted two anonymous women who claimed that Wedgewood sent them inappropriate messages while they were underage, and it reported that Wedgewood had shut down his accounts after being accused of sending inappropriate messages to underage girls.

After the Daily Beast published its article, Wedgewood sued the Daily Beast in Illinois state court on grounds of (1) defamation; (2) placing him in a false light; and (3) IIED. In response, the Daily Beast removed the case to federal court, where it moved to dismiss Wedgewood’s complaint under Rule 12(b)(6) (failure to state a claim upon which relief can be granted).

As the district court explained, under Illinois law a statement is defamatory if it “tends to cause such harm to the reputation of another that it lowers that person in the eyes of the community or deters third persons from associating with him.” Kolegas v. Heftel Broad. Corp., 607 N.E.2d 201, 206 (Ill. 1992). Additionally, a claim for defamation requires proof that: (1) the defendant made a false statement about the plaintiff; (2) the defendant made an unprivileged publication of that statement to a third party; and (3) this publication caused damages. Perfect Choice Exteriors, LLC v. Better Bus. Bureau of Cent. Ill., Inc., 99 N.E.3d 541, 547 (Ill. App. Ct. 2018).

The court also explained that damages arising out of defamation may be pleaded in one of two ways. In Illinois, a statement is considered defamatory per se, and damages may be presumed, “if its harm is obvious and apparent on its face.” Otherwise, a statement is defamatory per quod, thereby requiring specified damages, “if extrinsic facts are needed to establish that the statement is harmful to the plaintiff’s reputation.” Van Pelt v. Bona-Dent, Inc., No. 17 C 1128 (N.D. Ill. May 16, 2018). Further relevant here, a statement is defamatory per se if it involves “words which impute the commission of a criminal offense” or “words that prejudice a party, or impute lack of ability, in his or her trade, profession or business.” Kolegas, 607 N.E.2d at 206.

In this case, the court expressly declined to reach the question of whether the statements published by the Daily Beast were false because it agreed with the Daily Beast’s principal contention that Wedgewood could not establish damages. See Wedgewood, at 4, n.3. Thus, the primary issues before the court were whether Wedgewood’s defamation claim involved presumed damages and, if not, whether Wedgewood had pleaded a claim for specific damages.

As to the former, Wedgewood argued that the Daily Beast’s article was defamatory per se because it implied that he had committed a criminal offense by soliciting underage girls to perform sexual acts. However, under the “innocent construction rule,” a statement is not actionable per se if it “may reasonably be interpreted as asserting something other than what is implicated by the [relevant] per se category.” Van Pelt, supra (citing Chapski v. Copley Press, 442 N.E.2d 195, 199 (Ill. 1982)). Thus, while the court agreed that Wedgewood’s interpretation of the Daily Beast’s statements was plausible, it also concluded that another reasonable reading of the Daily Beast article was that Wedgewood had merely communicated with underage girls with no intention of progressing to physical acts. Therefore, it held that Wedgewood’s claim did not involve defamation per se, nor could damages be presumed.

Regarding specific damages, the court noted that Wedgewood’s complaint included only “vague references to ‘loss of income [and] loss of reputation'” and that such allegations were insufficient to meet the high standard required for defamation per quod claims. See Taradash v. Adelet/Scott-Fetzer Co., 628 N.E.2d 884, 888 (Ill. App. Ct. 1993) (“General allegations of damages, such as damages to an individual’s . . . reputation or general economic loss, are insufficient to state a claim of defamation per quod.”). Thus, the court concluded that Wedgewood had failed to specifically allege damages, and it consequently granted the Daily Beast’s motion to dismiss Wedgewood’s claim for defamation.

Next, the court turned to Wedgewood’s claim that the Daily Beast had placed him in a false light that would be highly offensive to a reasonable person. In a brief paragraph, the court reasoned (and Wedgewood conceded) that the false light claim would rise or fall with the defamation claim. Thus, the court dismissed Wedgewood’s false light claim as well.

Last, the court explained that Wedgewood’s claim for IIED required him to allege three elements: (1) the defendant’s conduct was extreme and outrageous; (2) the defendant knew that there was a high probability that its conduct would cause severe emotional distress; and (3) the conduct in fact caused severe emotional distress.” Swearnigen-El v. Cook Cty. Sheriff’s Dep’t, 602 F.3d 852, 864 (7th Cir. 2010). Further reasoning that “defamatory statements . . . do not clear the high hurdle for extreme and outrageous conduct, Fields v. Jackson, No. 16 C 1961 (N.D. Ill. Sept. 19, 2017), the court concluded that Wedgewood had failed to state a claim for IIED and dismissed the remainder of Wedgewood’s complaint.

For now, the Daily Beast has successfully defended itself against Wedgewood’s claims. Notably, though, the court granted Wedgewood leave to amend his complaint before April 8, 2020. Thus, it is unclear as to whether this matter is settled for good. Even if Wedgewood can remedy his defamation claim (and potentially his false light claim) by adequately pleading specific damages, he will still need to prove the additional elements of defamation (e.g., falsity, knowledge of falsity, and unprivileged publication) to ultimately succeed.

]]>https://www.closeupsblog.com/2020/04/court-dismisses-defamation-claim-against-the-daily-beast/feed/0Man vs. Machine: Schwarzenegger Files Right of Publicity Suit Against Robot Builderhttps://www.closeupsblog.com/2020/04/man-vs-machine-schwarzenegger-files-right-of-publicity-suit-against-robot-builder/
https://www.closeupsblog.com/2020/04/man-vs-machine-schwarzenegger-files-right-of-publicity-suit-against-robot-builder/#respondTue, 07 Apr 2020 21:35:49 +0000https://www.closeupsblog.com/?p=2747Continue Reading]]>On March 4, 2020, Arnold Schwarzenegger (through his company, Oak Productions, Inc.) filed a lawsuit in a California state court against ASAP Group, LLC (doing business as Promobot). See Oak Prods., Inc. v. ASAP Grp., LLC, No. 20SMCV00347 (Mar. 4, 2020). According to the complaint, Promobot manufactures customizable service robots that can be made to look like real people, and it has “made Schwarzenegger the unwilling ‘face’ of Promobot” by marketing a robot made in the former governor’s likeness[1] without his permission.

Specifically, Schwarzenegger’s complaint lists four causes of action, based on (1) California Civil Code section 3344; (2) common law right of publicity; (3) unjust enrichment; and (4) unfair business practices (i.e., likelihood of confusion regarding whether Schwarzenegger has endorsed Promobot). And although the case is still in its infancy, it is worth noting that this is not the first time a celebrity has brought right of publicity claims against the use of a robot that resembles her or him.

In 1992, Wheel of Fortune hostess Vanna White sued over an advertisement that “depicted a robot, dressed in a wig, gown, and jewelry which [the advertiser] consciously selected to resemble White’s hair and dress. The robot was posed next to a game board which [wa]s instantly recognizable as the Wheel of Fortune game show set. . . .” White v. Samsung Elecs. Am., Inc., 971 F.2d 1395 (9th Cir. 1992). Since the advertisement had been created without White’s permission, she sued based on (1) California Civil Code section 3344; (2) California’s common law right of publicity; and (3) likelihood of confusion under Section 43 of the Lanham Act. Also, importantly, the defendants in White “used a robot with mechanical features, and not, for example, a manikin molded to White’s precise features.” 971 F.2d at 1397. Thus, reasoning that the robot did not look like White, the district court granted summary judgment for the defendants on all of White’s claims.

On appeal, the Ninth Circuit affirmed in part, reversed in part, and remanded to the district court. In regard to White’s first cause of action, the court noted that California Civil Code section 3344(a) provides, “Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner . . . for purposes of advertising or selling . . . without such person’s prior consent . . . shall be liable for any damages sustained by the person or persons injured as a result thereof.” White, 971 F.2d at 1397. Furthermore, the court agreed with the district court that the defendants’ robot did not actually look like White. Accordingly, the Ninth Circuit affirmed the district court’s dismissal of White’s section 3344 claim.

As to White’s second cause of action, the court explained that California’s common law right of publicity “may be pleaded by alleging (1) the defendant’s use of the plaintiff’s identity; the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.” White, 971 F.2d at 1397. Based on this formulation, the district court dismissed White’s claim because, in its view, the defendants had not appropriated White’s “name or likeness.”

However, in California, the common law “right of publicity is not limited to the appropriation of name or likeness.” White, 971 F.2d at 1398. Rather, “a celebrity’s identity can be valuable in the promotion of products, and the celebrity has an interest that may be protected from the unauthorized commercial exploitation of that identity . . . . If the celebrity’s identity is commercially exploited, there has been an invasion of his right whether or not his ‘name or likeness’ is used.” Id. (quoting Carson v. Here’s Johnny Portable Toilets, Inc., 698 F.2d 831, 835 (6th Cir. 1983)). Thus, since White had alleged facts showing that the defendants had appropriated her identity, notwithstanding the differences in likeness between herself and the robot, the Ninth Circuit reversed the district court’s grant of summary judgment on this claim.

Last, the court explained that White’s third cause of action required showing that the defendants’ advertisement created a likelihood of confusion over whether White was endorsing the defendants’ product, based on an analysis of the Sleekcraft likelihood of confusion factors.[2]White, 971 F.2d at 1399–00. To that end, the Ninth Circuit determined that the district court had erred in balancing the Sleekcraft factors and that White had “raised a genuine issue of material fact concerning a likelihood of confusion as to her endorsement.” White, 971 F.2d at 1401. Accordingly, the court reversed summary judgment as to White’s Section 43 claim as well.

Already, Schwarzenegger’s case appears to share some similarities with White, as the claims and issues to be decided are mostly all the same. Just like the plaintiff in White, here Schwarzenegger alleges causes of action based on California’s statutory and common law rights of publicity, as well as on a likelihood of confusion over endorsement. Notably, it appears that the Promobot robot does share a likeness with the real Schwarzenegger—a key distinction from the facts of White that may play out in Schwarzenegger’s favor, particularly with respect to the section 3344 issue.

We will continue to monitor for developments. If this case advances, we’ll be back…

[1] To be clear, it appears Promobot’s robot is not capable of time travel.

]]>https://www.closeupsblog.com/2020/04/man-vs-machine-schwarzenegger-files-right-of-publicity-suit-against-robot-builder/feed/0Fair Winds to Copyright Holders: States Have Sovereign Immunity from Infringement Suitshttps://www.closeupsblog.com/2020/03/fair-winds-to-copyright-holders-states-have-sovereign-immunity-from-infringement-suits/
https://www.closeupsblog.com/2020/03/fair-winds-to-copyright-holders-states-have-sovereign-immunity-from-infringement-suits/#respondTue, 31 Mar 2020 18:43:43 +0000https://www.closeupsblog.com/?p=2735Continue Reading]]>On March 23, 2020, the United States Supreme Court held that the Copyright Remedy Clarification Act of 1990 (CRCA) is unconstitutional and therefore invalid. SeeAllen v. Cooper, No. 18-877, 589 U.S. ___ (2020). Prior to Allen, the CRCA provided a means for individuals to sue states for copyright infringement by expressly abrogating the states’ sovereign immunity in that realm. But as a result of the Court’s recent decision, states are once again totally immune from copyright infringement lawsuits.

The facts of Allen date back to 1718, when the infamous pirate Blackbeard ran his flagship vessel (the Queen Anne’s Revenge) aground on a sandbar off the coast of what is now North Carolina, causing the ship to sink. The shipwreck was discovered nearly 300 years later, and due to its location, the wreck itself is owned by North Carolina state. Upon learning of the discovery, the state of North Carolina hired a salvage company to excavate the wreck, which in turn hired Allen to document the numerous recovery missions. For over a decade, Allen photographed and filmed the underwater missions to salvage the shipwreck, and Allen registered copyrights in all of the works. This dispute arose from Allen’s claims that North Carolina had infringed some of those copyrights by using and reproducing Allen’s photographs and videos online without his permission. See Allen, No. 18-877, slip op. at 1–2.

The general rule regarding states’ sovereign immunity is that a state is immune from any lawsuit to which it has not consented, but Congress may abrogate that sovereign immunity if the following two conditions are present: (1) “Congress must have enacted ‘unequivocal statutory language’ abrogating the States’ immunity from the suit;” and (2) “some constitutional provision must allow Congress to have thus encroached on the States’ sovereignty.” See Allen, No. 18-877, slip op. at 5 (quotingSeminole Tribe of Florida v. Florida, 517 U.S. 44, 56 (1996); and Kimel v. Florida Board of Regents, 528 U.S. 62, 78 (2000)).

In the district court, North Carolina moved to dismiss Allen’s complaint based on its sovereign immunity, arguing that it had not consented to Allen’s bringing of the suit. Allen, on the other hand, argued that Congress expressly allowed for states to be sued for copyright infringement under the CRCA. The district court agreed with Allen and denied North Carolina’s motion to dismiss. See Allen, No. 18-877, slip op. at 2–3.

Notably, however, the Supreme Court had already held that the Patent Remedy Clarification Act of 1990 (the CRCA’s sister statute holding states liable for patent infringement) was unconstitutional in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627 (1999). Thus, on interlocutory appeal, the Fourth Circuit reversed, largely relying on the Supreme Court’s decision in Florida Prepaid. And on certiorari review, the Supreme Court affirmed the Fourth Circuit’s decision, also based on its Florida Prepaid decision. See Allen, No. 18-877, slip op. at 16 (“Florida Prepaid all but prewrote our decision today.”). Indeed, the facts and decisions in Allen must be viewed against the backdrop of the Supreme Court’s decision in Florida Prepaid.

In Allen, there was no dispute that Congress had used unequivocal language to abrogate the states’ sovereign immunity from copyright infringement lawsuits. Thus, the only question presented was whether Congress had the constitutional authority to pass the CRCA. See Allen, No. 18-877, slip op. at 5. To that end, Allen argued that Congress has authority to abrogate the states’ sovereign immunity from copyright infringement suits, based on either (1) Article I of the Constitution (i.e., the Intellectual Property Clause) or (2) section 5 of the Fourteenth Amendment, which authorizes Congress to enforce the provisions of the Due Process Clause of the Fourteenth Amendment’s section 1. Id.

First, Allen looked to Article I of the Constitution, which bestows upon Congress, inter alia, the power to grant limited-term monopolies for artistic works and inventions in the form of copyrights and patents. See Art. 1, § 8, cl. 8. Thus, Allen argued, it naturally follows that Congress has the right to abrogate sovereign immunity for infringement of such rights. However, the Court explained that “‘Article I cannot be used to circumvent’ the limits sovereign immunity ‘place[s] upon federal jurisdiction.'” Allen, No. 18-877, slip op. at 6–7 (quotingSeminole Tribe, 517 U.S. at 73) (“The problem for Allen is that this Court has already rejected his theory.”). Rather, the Court noted, its prior decision in Seminole Tribe controlled both its subsequent decision in Florida Prepaid and its current decision in Allen. In short, according to precedent, Congress cannot rely upon the Intellectual Property Clause to abrogate states’ sovereign immunity. See Allen, No. 18-877, slip op. at 6.

As to Allen’s second argument, the general rule is that section 5 of the Fourteenth Amendment does grant Congress the power to abrogate the states’ sovereign immunity, but only if the abrogation is “congruent and proportional” to the Fourteenth Amendment injury at stake. Therefore, the question in Allen was whether the CRCA was congruent and proportional to the Fourteenth Amendment’s protections against depriving copyright holders of their copyrights, which are a form of property, without due process. Allen, No. 18-877, slip op. at 11.

Critically, Supreme Court precedent dictates that “an infringement must be intentional, or at least reckless, to come within the reach of the Due Process Clause.” Id. (citingDaniels v. Williams, 474 U.S. 327, 328 (1986)). Indeed, the crux of the Florida Prepaid decision—and consequently, the decision in Allen—is that any statute that abrogates sovereign immunity for infringement lawsuits must limit its abrogation to those cases involving intentional or reckless infringement. Alternatively, the statute must have been enacted in response to, and upon evidence of, a pattern of unconstitutional infringement. But as the Allen Court explained, both the PRCA and the CRCA failed this test. Thus, based on this rule, the Florida Prepaid Court held that Congress acted beyond its authority by passing the PRCA, which subjected states to all patent infringement lawsuits brought against them (rather than just those cases of intentional infringement). See Florida Prepaid, 527 U.S. at 647. Similarly, the Allen Court held that Congress also lacked authority to pass the CRCA, which subjected states to all copyright infringement lawsuits brought against them. Allen, No. 18-877, slip op. at 11–16.

The Court’s decision in Allen is as alarming as it is unsurprising. Indeed, copyright holders should be wary that states are now free to infringe all copyrights without inhibition, and that this will be the case unless and until Congress passes another, narrower version of the CRCA. As Justice Breyer explained in concurrence:

[O]ne might think that Walt Disney Pictures could sue a State (or anyone else) for hosting an unlicensed screening of the studio’s 2003 blockbuster film, Pirates of the Caribbean (or any one of its many sequels).

Yet the Court holds otherwise. In its view, Congress’ power under the Intellectual Property Clause cannot support a federal law providing that, when proven to have pirated intellectual property, States must pay for what they plundered. . . . Whether a future legislative effort along those lines will pass constitutional muster is anyone’s guess. But faced with the risk of unfairness to authors and inventors alike, perhaps Congress will venture into this great constitutional unknown.

Granted, the Court’s decision in Allen indicates that Congress could pass a constitutionally valid version of the CRCA by limiting its applicability to instances of intentional or reckless state copyright infringement. And in many ways, it is an invitation for Congress to do just that. See Allen, slip op. at 16 (“[Our] conclusion, however, need not prevent Congress from passing a valid copyright abrogation law in the future.”). But if Congress does not jump aboard, copyright holders can only hope that a state looking to use a copyrighted work will follow its moral compass by obtaining a license to do so.

]]>https://www.closeupsblog.com/2020/03/fair-winds-to-copyright-holders-states-have-sovereign-immunity-from-infringement-suits/feed/0Force Majeure Clauses under California Law in Light of the Coronavirushttps://www.closeupsblog.com/2020/03/force-majeure-clauses-under-california-law-in-light-of-the-coronavirus/
https://www.closeupsblog.com/2020/03/force-majeure-clauses-under-california-law-in-light-of-the-coronavirus/#respondWed, 11 Mar 2020 23:27:15 +0000https://www.closeupsblog.com/?p=2726Continue Reading]]>As the U.S. braces for the coronavirus COVID-19 pandemic, companies across a broad range of industries are increasingly affected by the growing restrictions on travel and trade. Practically speaking, concerns abound over issues like whether airlines will issue refunds for cancelled flights, or what happens to manufacturers who source materials from Asia. Indeed, the entertainment industry is not immune either. For instance, what if a production contract calls for filming in Hong Kong next week? What if talent is unable to leave their home country for a concert tomorrow? What if, heaven forbid, talent is under mandatory quarantine while recovering from the virus? At times like these, the answers usually lie in the contracts, specifically in a powerful provision that is often underestimated because it is only invoked in the unlikeliest of scenarios: the force majeure clause.

At its core, the principle underlying the doctrine of force majeure (i.e., “vis major” or “superior force”) is simple: “No man is responsible for that which no man can control.” Cal. Civ. Code § 3526. Generally, a force majeure clause is triggered when the occurrence of a force majeure event, sometimes referred to as an “act of God,” ultimately renders performance so impracticable that it is excused. Notably, the term “force majeure” is technically broader and more comprehensive than the term “act of God” because a force majeure, unlike an act of God, can originate in human agency just as readily as it can originate in a natural force (e.g., war, terrorism, workers’ strike, or quarantine), and courts similarly recognize that the doctrine of impossibility does not require a showing of actual or literal impossibility of performance, but only a showing of commercial impracticability. See George A. Locke, Act of God, 6 Am. Jur. Proof of Facts 3d § 1, Comment (1989); Seaboard Lumber Co. v. U.S., 308 F.3d 1283, 1294 (Fed. Cir. 2002). Thus, a force majeure clause is an application of the doctrine of impossibility or impracticability: performance of a contract is excused when an (1) unforeseeable event, (2) outside of the parties’ control, (3) renders performance impossible or impracticable. See Citizens of Humanity, LLC v. Caitac Int’l, Inc., No. B215232, at *14 (Cal. Ct. App. Aug. 3, 2010) (“‘Force majeure’ is the equivalent of the common law contract defense of impossibility.”); Cal. Civ. Code § 3531 (“The law never requires impossibilities.”).

In practice, a contract will often define what types of events can constitute a force majeure (e.g., earthquake, flood, fire, epidemic, mandatory quarantine, terrorism, war, workers’ strike, etc.), although specific enumeration is not necessary. When invoked, a force majeure clause is typically a shield, used as a defense to a breach of contract claim where performance is rendered impracticable or even impossible by a force majeure event, thereby excusing performance. Alternatively, a party may seek declaratory relief to determine the status of a contract in light of a force majeure. In any event, in determining whether an event constitutes a force majeure, the California Supreme Court has explained that the meaning of force majeure “is not necessarily limited to the equivalent of an act of God. The test is whether under the particular circumstances there was such an insuperable interference occurring without the party’s intervention as could not have been prevented by the exercise of prudence, diligence and care.” Pac. Vegetable Oil Corp. v. C.S.T., Ltd., 29 Cal. 2d 228, 238 (Cal. 1946).

Significantly, force majeure clauses vary depending on the nature of the contract, and parties may contract around the default rules. See Cal Civ. Code § 1511 (performance of an obligation is excused “[w]hen it is prevented or delayed by an irresistible, superhuman cause . . . unless the parties have expressly agreed to the contrary.” (emphasis added)). For instance, in an entertainment contract, a force majeure clause may give particular significance and attention to the effects of a strike as a potential force majeure. Moreover, a force majeure clause may, through its own terms, provide for a more narrow or broad application of the doctrine than what is typically applied under common law principles (e.g., a strike may temporarily suspend a studio’s contractual obligations, or it may permanently excuse a studio’s performance, depending on the specifics of the clause in the contract). Absent specific deviations, however, the underlying principles of impracticability or impossibility govern, and a party must establish the general requirements of an unforeseen, uncontrollable impracticability in order to invoke a typical force majeure clause. See Pac. Vegetable Oil Corp., 29 Cal. 2d at 238.

California courts have not ruled on the applicability of force majeure provisions with regard to a plague or epidemic such as the coronavirus. Applying the principles discussed above, however, a court would likely determine that the coronavirus outbreak and its subsequent effects were neither foreseeable nor within the parties’ control. Consequently, application of a force majeure clause would likely hinge on whether the coronavirus has rendered performance of a contract actually impossible or impracticable—this will ultimately require a circumstantial analysis. For example, if a production contract requires a party to travel to or from Wuhan, performance would almost certainly be excused under force majeure. On the other hand, if the epidemic does not necessarily hinder production, a court is less likely to excuse performance. Moreover, if the parties’ contract happens to contemplate a global health epidemic like the spread of COVID-19, express terms of the contract would dictate the ultimate result.

Force majeure issues are increasingly likely to be litigated as more contracts are affected by the coronavirus. In the entertainment industry, parties should carefully analyze the actual extent of those effects and familiarize themselves with the basic principles underlying the force majeure doctrine, as discussed above. So long as the threat continues, so will the likelihood of triggering a force majeure provision.

]]>https://www.closeupsblog.com/2020/03/force-majeure-clauses-under-california-law-in-light-of-the-coronavirus/feed/0SDNY Helps Draw the Boundaries of Copyright Protection in Music Caseshttps://www.closeupsblog.com/2020/03/sdny-helps-draw-the-boundaries-of-copyright-protection-in-music-cases/
https://www.closeupsblog.com/2020/03/sdny-helps-draw-the-boundaries-of-copyright-protection-in-music-cases/#respondWed, 11 Mar 2020 18:40:38 +0000https://www.closeupsblog.com/?p=2717Continue Reading]]>Critics of increasingly restrictive effects of copyright law in musical production can seek solace in the recent Southern District of New York copyright decision of Guity v. Santos, et al., No. 18-cv-10387 (SDNY Dec. 05, 2019) (“Order”).

The district court ultimately granted defendants’ motion to dismiss copyright infringement claims brought by musician Nazim Guity against Anthony (Romeo) Santos, Sony, Alcover, and We Loud. Guity claimed that defendants “recorded, released, and profited” from his copyrighted work. Order at 1. The accused song shares the name “Eres Mia” with the protected work, a 2011 song by Guity. Guity collaborated with Alcover and We Loud in creating “Eres Mia” and procured copyright protection in 2014. Santos worked with Alcover and We Loud as well in creating Santos’s “Eres Mia” and later with Sony for the song’s marketing and distribution.

Guity specifically alleged that defendants were guilty of 1) copyright infringement by failing to obtain a mechanical license and/or failure to pay a compulsory license fee; 2) copyright infringement by claiming to compose, author, record, and distribute a copyrightable song; and 3) civil conspiracy to commit copyright infringement; and further alleged 4) plaintiffs were entitled to the equitable remedies of accounting and constructive trust. Id. at 2.

The complaint further read that the Santos song contained protected elements of the Guity song and was “so substantially similar to the [Guity song] as to constitute actionable copyright infringement under Title 17 of the United States Code.” Id.

Substantial similarity, as explained by the court, is part of the legal standard for a copyright infringement claim. In assessing this aspect, the court utilized both the “ordinary observer” test and the “more discerning observer” test. The first test asks whether an ordinary observer would be disposed to overlook disparities and would consider the “aesthetic appeal” of each song to be the same. Id. at 6 (citing Peter F. Gaito Architecture, LLC v. Simone Development Corp.602 F.3d 57, 66 (2d Cir. 2010). The second is used when the work contains protectible and unprotectible elements and requires the court to determine whether the alleged infringer has misused the unique way in which the author has “selected, coordinated and arranged the work’s elements.” Order at 6.

Judge Castel determined that under either test, “no reasonable jury could find the two works to be substantially similar.” Id. at 11. “The total concept and overall feel” of each song – an application of the “more discerning observer” test – was respectively so distinct as to preclude such a finding. Id. at 10. Any similarity was de minimis. The sporadic use of short generic phrases and words such as “love,” “mine,” “baby,” and “eres mia,” in either song would not amount to substantial similarity. Furthermore, the court found that under the “ordinary observer” test, the average listener would not find that the Santos song took from the Guity song that which is “pleasing to the ears.” Id. (citing Pyatt v. Raymond, 462 F. App’x 22, 24 (2d Cir. 2012)). Judge Castel then briefly transformed into a Rolling Stone editor in distinguishing the Guity song as a “a straightforwardly brooding hard rock song” and the Santos song as a “light, but complex bachata.” Order at 11.

The court also dismissed the case on the grounds that the alleged protected elements of the Guity song were not, in fact, protected. The order assessed Guity’s claims that his song’s “unique lyrical themes” were protected. Id. at 8. The court avoided the slippery slope that many are weary of within copyright law. Judge Castel clarified that the themes of Guity’s song that were at play, specifically love and desire, “[we]re the exact type of broad themes that lie beyond copyright’s protection.” Id.

The case provides some much-needed clarification regarding the limits of copyright protection.